Copyright Law's "Idea/Expression Dichotomy" and Kate Spade, and Rihanna, and Kinder Aggugini, and Macy's, and the Beatles...

This seemingly simple question has bedeviled many an attorney practicing so-called "soft IP" law (shorthand for copyright, trademark, and basically all other intellectual property besides patents.) If you're interviewing a potential attorney, and he has to stop and think before answering this question, that is probably a good sign. Hire him.

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

N.B. Some of the items in the § 102 list ("methods of operation," "discoveries," etc.) may be protectable under patent law, but only under circumstances that those science-y "utility patent-type" lawyers can explain to you...

It seems fairly obvious in both the Kate Spade and the Rihanna cases that the second work was indeed "derived" from the first (to use LaChapelle's term.) But if the only thing copied was an idea, that "derivation" may not matter, since -- say it with me -- you can't copyright ideas.

Then again, federal copyright isn't the whole story in intellectual property disputes. Its loyal sidekick, trademark, has a way of popping up in just about every copyright dispute LOF covers. Why? If you can, ignore the pictures and focus on the text of this Daily Mail article for a moment -- in particular, the passage stating that "fans were buzzing about the video and wanting to know if David had directed it." If you're acquainted with the U.S. Lanham Act (or maybe even if you're not), you know that trademark infringement is, at root, about confusion. Or more precisely, likelihood of confusion "as to the origin, sponsorship, or approval of . . . goods [or] services." Unsurprisingly, one of the factors courts consider in assessing the likelihood of confusion in a given case is evidence of actual confusion. So if LaChapelle can turn this little anecdote about fan confusion into evidence that a judge (or jury) finds reliable -- say, a methodologically sound survey -- he might just have a successful trademark infringement claim on his hands. (IP attorneys: never fear, LOF will discuss the Dastar case and its impact on false authorship claims later.)

Another important caveat to the general "no protection for ideas" rule is a resilient state-law doctrine called "theft of idea," which is typically premised on a theory of implied contract -- namely, "I'll share my idea with you under the mutual understanding that, if you like it, you'll pay me in order to use it." As one might expect, courts have considered whether these state-law "theft of idea" claims are "preempted" by the federal Copyright Act. But according to the leading federal circuit court precedent on point, the verdict is No Preemption. (11/7/11: Supreme Court won't entertain arguments to the contrary.) At least, not if a "theft of idea" claim requires some "extra element" that a copyright claim would not. (Other state-law causes of action have been used to right the wrongful taking of ideas, but alas, there isn't time to discuss those right now.)

So all of this is very interesting, you are undoubtedly thinking, but why is LOF blogging about this today? Well, the all-important time peg behind this post is personal to LOF -- i.e., LOF happened to notice the following poster in the West 4th Street subway station, and decided to give readers their first pop quiz. So go ahead, take it in:

LOF takes no position on these issues. But it will say, first, that the idea/expression dichotomy is tricky and should not be navigated without the help of a good attorney, and second, that trademark law is a thorny little thicket and requires the guidance of an ever better attorney.

[No legal advice here. Sorry, try again next time! Actually, don't -- nothing on this site should be construed as legal advice or relied upon in order to make any decision, big or small.]

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